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The Myth of the “Massachusetts Model”

By on June 16, 2022 Categories: , , ,

The title of Saul Cornell’s recent blog postThe Myth of Non-enforcement of Gun Laws in Nineteenth Century America—leaves the impression that I will argue that nineteenth-century gun restrictions went unenforced.  I will make no such argument.  In some places, laws regulating the carrying of weapons were enforced strictly.  In others, they were ignored.  Some authorities enforced the laws against blacks but not against whites.  My argument is targeted against a specific set of surety laws that Professor Cornell claims largely prohibited public carry outside the South during the nineteenth century.  These laws, I will argue, neither broadly restricted public carry nor were widely enforced.   

Professor Cornell has posited that the antebellum United States had two regulatory traditions governing the carrying of weapons.  The South’s regulatory environment was permissive, he claims, because Southern laws prohibiting the carrying of concealed weapons did not prohibit people from bearing arms openly.  Yet “[o]utside of the slave south,” he argues, “a more restrictive approach to gun regulation emerged, taking root in Massachusetts and spreading to other states.”  Under this approach, which he dubs the Massachusetts Model, “no person may go armed . . . without reasonable cause to apprehend an assault or violence to his person, family, or property.”

There are two problems with this claim.  First, Professor Cornell’s assertions are based on selectively quoting from the law. The full version of the provision contained a standing requirement that severely limited the law’s actual scope.  Second, the historical evidence refutes the claim that Northern states prohibited public carry, either using this surety provision or the common law crime of going armed to the terror of the people.  To the contrary, the “Massachusetts Model” did not serve as a model of prohibiting public carry anywhere, including in Massachusetts.  

In 1835, Massachusetts codified its state laws in a compilation known as the Revised Statutes of the Commonwealth of Massachusetts.  The Revised Statutes partly compiled existing law and partly revised it.  One revision governed when justices of the peace could require individuals to post sureties promising to keep the peace.  The new provision, § 16, read in full:

If any person shall go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to fear an assault or other injury, or violence to his person, or to his family or property, he may, on complaint of any person having reasonable cause to fear an injury, or breach of the peace, be required to find sureties for keeping the peace, for a term not exceeding six months, with the right of appealing as before provided.

Nine other jurisdictions used the Revised Statutes of Massachusetts as a template when codifying their laws.  These jurisdictions also adopted Section 16, including Wisconsin (1839), Maine (1840), Michigan (1846), Virginia (1848), Minnesota (1851), Oregon (1853), the District of Columbia (1857), Pennsylvania (1860), and West Virginia (1870).

Professor Cornell’s claim that these laws “forbade arming oneself except in unusual situations” mischaracterizes the statutes.   These laws did not prohibit anyone from going armed.  They simply stated that an individual carrying a weapon may be required to find sureties if someone else complained of having “reasonable cause to fear an injury, or breach of the peace.” So to invoke the laws, a complainant could not merely assert that the defendant went armed. (See, for example, p. 620 of this treatise for Wisconsin justices of the peace, in which the form complaint requires that the plaintiff “has reasonable cause to fear a breach of the peace, and personal injury at the hands of [the defendant].”)  Even then, a defendant could claim that he went armed because he had reasonable cause to fear an attack.  If a court did not accept that explanation, then the defendant could be required to post a bond to keep the peace. 

Surety laws, thus, are not criminal prohibitions.  As Blackstone explained, sureties served as a “caution . . . intended merely for prevention, without any crime actually committed by the party, but arising only from probable suspicion that some crime is intended.”  The surety laws did not prohibit going armed.  They merely authorized justices of the peace to require a bond in some circumstances when individuals went armed without reason to fear attack.

Professor Cornell’s primary interpretive evidence to the contrary is an appeal to authority.  He relies on a comment from Judge Peter Oxenbridge Thacher, who treated the surety provision as though it broadly prohibited going armed.  Rather than offer any legal analysis that Judge Thacher was correct, much of Professor Cornell’s blog post is an attempt to bolster Judge Thacher’s credentials.   

But Judge Thacher’s remark is of dubious legal authority.  It was made as part of a welcome address to members of the grand jury.  His comment was not part of a court opinion, nor was it a legal instruction to the grand jury in a specific case.  Even more, we have significant circumstantial evidence that Judge Thacher’s understanding was not shared by nineteenth-century judges, lawyers, and laymen in Massachusetts or in the other surety states.    

Let’s start with the judges on the Supreme Judicial Court of Massachusetts.  In Commonwealth v. Murphy, that court analyzed whether the right to bear arms was violated by an 1893 state law prohibiting organized bodies of men from parading and drilling with arms.  In upholding the law, the court noted that other state courts had upheld bans on concealed carry.  But curiously, the court made no mention of Massachusetts’s supposed 60-year history of severely limiting public carry.  Surely if Massachusetts had the power to restrict public carry to those in danger (and if it had exercised that power since 1836) then it would follow a fortiori that the state could ban the carrying of firearms in a parade.  (And if Massachusetts had restricted public carry since 1836 to those reasonably fearing attack, as Professor Cornell claims, why did it need the 1893 law at all?)

Judge Thacher’s understanding of the surety law is also at odds with other nineteenth-century lawyers and laymen.  Percy A. Bridgham, a member of the Suffolk County bar, answered readers’ legal questions in the Boston Globe.  On October 13, 1890, a reader asked whether a person could lawfully carry a concealed weapon while repossessing furniture.  Mr. Bridgham wrote back (p. 4), “There is no penalty in this State for carrying concealed weapons, except in cases where they are found on a person who is attempting to commit another crime.”  In a book Bridgham published the following year with a collection of legal questions, he noted that “[t]here is no statute in this State which expressly forbids the carrying of weapons, but there is a statute that provides that a person so carrying may be required to give bonds to keep the peace.”  Percy A. Bridgham, One Thousand Legal Questions Answered by the People’s Lawyer of the Boston Daily Globe 129 (1891); see also id. at 170 (reprinting the furniture repossession question and answer).  In 1873, the Detroit Free Press complained that in Michigan “there is no statute whatever against the carrying of concealed weapons,” even though the surety law had been on the books for three decades.  (Feb. 26, 1873, p.2)  The Detroit paper called the surety law “absurd” because a plaintiff had to have reason to fear an assault before he could file a complaint against someone going armed.  This made the law useless against those offenders who would use their weapons upon sudden provocation.  (Id.)

Not only did surety laws not ban public carry, by all appearances they were hardly ever invoked.  In his seminal article Firearm Regionalism and Public Carry, Professor Cornell and his co-author identified one unreported case where the law was at issue.  Even in that one case, the demand for a surety was not granted.

In his blog post, Professor Cornell tries to rationalize this dearth of cases with two claims: (1) Massachusetts residents rarely carried weapons in public, so there was no reason to prosecute; and (2) “records of justices of the peace in rural New England are rare.”  Both responses are unpersuasive.

Professor Cornell’s first claim is against the weight of the evidence.  Throughout the surety states, there are repeated complaints of people carrying concealed weapons.  (Despite his focus on Massachusetts arrest records, remember that Professor Cornell’s claim is not just about Massachusetts; he also claims that the Massachusetts Model became the predominant mode of regulation in nine other jurisdictions.)  In 1837, before Pennsylvania adopted its surety law, the Public Ledger (Philadelphia) complained that “[o]ur city is full of blacklegs, pickpockets, rowdies[,] and profligates from all parts of the country, and the universal practice among such offal, is to carry dirks, Bowie knives, and other instruments of mischief, with mischievous design.”  (Public Ledger, Mar. 15, 1837, p. 4).  In 1841, Green Bay residents requested that the legislature prohibit the carrying of concealed weapons.  (Public Meeting, Milwaukee Sentinel, Mar. 19, 1842).  They obviously did not understand Wisconsin’s 1839 surety law to already ban carrying weapons, and they believed the problem of people going armed was significant enough to warrant legislation.  And in 1881, Mayor Samuel King of Philadelphia demanded that Philadelphians stop carrying concealed weapons and threatened violators with prosecution under a Pennsylvania law that restricted concealed carry of deadly weapons.  (Mayor King’s Proclamation, Phila. Inquirer, July 25, 1881, p. 4)  (Yes, concealed carry prohibitions were commonplace outside the slaveholding South.)  These are just some examples, to which I could add many more. 

As for Professor Cornell’s second claim, a lack of evidence that surety cases existed is not so easily dismissed by pointing to the difficulty of finding the original records.  Even if justice of the peace records are difficult to find, there are indirect ways to search for cases.  Much like today, local newspapers in the nineteenth century reported on local cases, including those in police court.  I have searched prominent newspaper databases for surety cases in the ten surety states.  I have found very few—in the low single-digits.  In contrast, I have found newspapers in Massachusetts and Virginia claiming that the surety law was rarely invoked.

Even more remarkable, in the ten surety jurisdictions, there is not a single court decision about the surety law in any court of record.  Not one.  Ironically, the courts of record that have opined on the surety laws are primarily courts in the last ten years invoking Professor Cornell’s research to justify contemporary broad bans on public carry.

If evidence of nineteenth century gun law enforcement were so hard to find, we should not have readily available evidence of other laws being enforced.  But we do.  Prosecutions involving laws against the carrying of concealed weapons were common and reported in local newspapers in most of the country.  Also common were defendants mounting constitutional challenges against the validity of these laws in state courts of record.  These cases resulted in reported decisions.  Given this, it is incredible to believe that ten states could sharply restrict both open and concealed carry, and yet, there is not a single decision about these laws in any court of record.  More likely, these surety laws never ended up in a court of record because they were hardly enforced in any state in which they were passed.

Ultimately, virtually all the surety states adopted laws against the carrying of concealed weapons.  Proceeding chronologically, Virginia restricted the carrying of concealed weapons in 1838, Pennsylvania in 1850, the City of Washington in 1858, Wisconsin in 1872, Oregon in 1885, Michigan in 1887, Maine in 1917, and Minnesota in 1917.  These state laws left it lawful to carry weapons openly.  West Virginia was an outlier; it adopted a broader law restricting public carry, whether openly or concealed, but even that law only applied to handguns and other concealable weapons.  Massachusetts did not restrict public carry significantly until it required a license to carry a gun in 1906.  These criminal statutes, not the surety laws, became the predominant mode of enforcing public carry restrictions.  And they show that the “Southern model” of prohibiting only concealed carry was not limited to the South.

Thus, the reason Professor Cornell is unable to produce evidence supporting his claim that carrying weapons was generally unlawful is that such laws did not exist.  To the contrary, it was generally lawful to carry firearms in some form throughout the North.  Neither surety laws, nor the common law offense of going armed to the terror of the people, made it unlawful for a person to carry a weapon for self-defense or other lawful purposes.  A few colorful newspaper reports from New York and Pennsylvania illustrate the point (one can find more examples in the surety states and in the North)

From New York:  “Judge Lawrence decided to-day that the statute forbidding the carrying of concealed weapons did not apply to pistols, and discharged Gen. Howard, a Baltimore merchant, on whom a pistol was found.”

Boston Post, May 6, 1874, at 2.

Also from New York:  “A wild sensation was caused in New York streets on Wednesday.  A tall man wearing a brown overcoat took up a position in the doorway of the Fulton bank, with a large revolver in his right hand, with the muzzle pointed to the ground.  He was justled by a number of persons who had occasion to enter the bank, and finally a policeman was sent for.  To him the man said he was waiting to [] ‘do up’ a man, and that he meant to shoot him.  As there is no law against carrying deadly weapons openly the man was ordered to move on.”

Lancaster Intelligencer, Feb. 7, 1889, at 1.

Philadelphia:  “Some very incomprehensible things are done by the courts.  That is, [their] things would be incomprehensible if done by others than the courts.  For instance:  B.S. Gratz, of New Jersey, who has been twice a patient in a lunatic asylum, strapped upon his person an overgrown pistol and then, with his artillery in view, invaded City Hall at Philadelphia and demanded an interview with Mayor Ashbridge.  . . . He was arraigned upon a charge of carrying concealed weapons; argued his own case and secured a discharge upon the variance between the evidence and the complaint.  His deadly weapon was not concealed and the law does not prohibit lunatics from carrying unconcealed weapons.  The curious feature of the case is that, the court, knowing the man to be a lunatic at least occasionally, deliberately allowed him to go forth armed . . . .”

Evening Journal, Dec. 15, 1899, at 2.

This post is long, but let me end by summing up briefly:  people carried weapons in surety states; the surety laws did not ban public carry (and were not commonly understood to do so); and the laws were rarely invoked.

This blog post was adapted from material in an amicus brief that I filed with Nelson Lund and the Buckeye Firearms Association in New York State Rifle & Pistol Association v. Bruen, No. 20-843.  That brief was based on my book chapter Constitutional Liquidation, Surety Laws, and the Right to Bear Arms, in New Histories of Gun Rights and Regulation:  Essays on the Place of Guns in American Law and Society (Joseph Blocher, Jacob D. Charles, Darrell A.H. Miller eds., forthcoming).

[Ed note: This post is in response to Prof. Cornell’s earlier argument on this blog.]